(Court of Appeal; Mummery, Dyson and Kay LJJ; 4 July 2008)
The husband inherited the wife's estate under a document purporting to be 'pursuant to an agreement... for the disposal of our property in a similar way by mutual testamentary dispositions', but disputed the application of the mutual wills doctrine to him or to his wife's estate in his hands on the basis that the relevant codicils did not record any express agreement not to revoke the wills being made. The husband appealed the judge's declaration that the codicils in question took effect as mutual wills so as to bind the wife's estate in the husband's hands on the basis that the judge had failed to identify the terms of the contract with sufficient particularity and that there had not been sufficiently clear and satisfactory evidence of mutual wills.
There had been ample evidence to justify the finding that the couple had made the contract referred to in the codicils. The argument resting on the alleged insufficiency or uncertainty of the terms of the contract was misconceived; the obligation on the surviving testator was equitable, and took effect as a constructive trust. The intentions of the husband and the deceased wife had been sufficiently expressed in the contract to lay the foundations for the equitable obligations that bound the conscience of the husband as survivor, in relation to the wife's estate. It had been prudent of the judge not to be drawn into determining other matters, such as the scope or extent of the constructive trust, which had not been raised in the pleadings or in the parties' submissions.